perspectives on law, from Richmond VA

Enforce but give up?

Marty Lederman asserts that there is ample historical precedent for what he describes as the Obama Administration’s “enforce-but-do-not-defend practice” with respect to DOMA § 3. But the label seems inapt. The Obama Administration is not simply refusing to defend. It is actively opposing a motion to dismiss. This appears consistent with various administrations’ positions in other cases. To describe the practice as a simple refusal to defend, however, significantly understates both the practical and legal import of what the administration is doing.